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  1. #1
    Domestique
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    Florida appeals court confirms statutory bike lane requirements

    The Florida 1st District Court of Appeal issued a decision today confirming that Florida law requires bicycle lanes on state roads unless certain (limited) exceptions apply. The court completely rejected the Florida Department of Transportations's reading of the statute, and grants standing to cyclist organizations to challenge state road designs.

    http://opinions.1dca.org/written/opi...08/07-1373.pdf

    Good news

  2. #2
    Ride the Road Daily Commute's Avatar
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    I'm not sure the exceptions are as limited as you suggest. Also, the cyclists lost because they didn't make the right objections at the right time.

    Here's what the court said:
    Quote Originally Posted by Court of Appeals Opinion Page 10
    We interpret this statute to mean that the Department is obligated to consider bicycle and pedestrian ways in the planning process and to establish bicycle and
    pedestrian ways in conjunction with the construction, reconstruction, or other change of any state transportation facilities. 335.065(1)(a), Fla. Stat. Bicycle paths shall be established unless the Department exercises its discretion not to establish bicycle and pedestrian ways where any of the conditions in section 335.065(1)(b) are demonstrated.
    Those exceptions give the DOT a lot of discretion not to stripe lanes:
    Quote Originally Posted by Court of Appeals Opinion Page 10
    1. Where their establishment would be contrary to public safety;
    2. When the cost would be excessively disproportionate to the need or probable use;
    3. Where other available means or factors indicate an absence of need.
    The court also said that other statutes might give the Florida DOT even more discretion:
    Quote Originally Posted by Footnote on Court of Appeals Opinion Page 10
    The Department argues that other statutory sections must be taken into account in whether to construct bicycle and pedestrian ways; in light of our decision, it is unnecessary for us to reach that issue.
    Finally, even at its broadest, the statute only requires, "bicycle and pedestrian ways." Unless some other part of the statute equates "bicycle ways" with striped bike lanes, no striped bike lanes are required. Wide outside lanes or maybe even simple "Bike Route" signs might be enough.

  3. #3
    Ride the Road Daily Commute's Avatar
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    Here's the text of the opinion:
    BRUCE ROSENZWEIG, BOCA
    RATON BICYCLE CLUB, and
    LEAGUE OF AMERICAN
    BICYCLISTS,
    Appellants,
    v.
    D E P A R T M E N T O F
    TRANSPORTATION, TOWN OF
    OCEAN RIDGE, TOWN OF GULF
    S T R E AM, T O W N O F
    MANALAPAN, SOUTH PALM
    BEACH, and PALM BEACH,
    Appellees.
    ___________________________/
    IN THE DISTRICT COURT OF APPEAL
    FIRST DISTRICT, STATE OF FLORIDA
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    CASE NO. 1D07-1373
    Opinion filed March 25, 2008.
    An appeal from the Department of Transportation.
    Stephanie Kopelousos, Interim Secretary.
    Katherine E. Giddings and P. Bruce Culpepper of Akerman Senterfitt, Tallahassee;
    Jeffrey C. Lynne of Akerman Senterfitt, Ft. Lauderdale; and Lawrence D. Silverman
    of Silverman Cosgrove & Sammataro, Miami, for Appellants.
    Alexis M. Yarbrough, General Counsel, and Robert B. Vanhorne, Assistant General
    Counsel, Department of Transportation, Tallahassee, for Appellee Department of
    Transportation; Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm
    Beach, for Appellees Town of Ocean Ridge, Town of Gulf Stream, Town of
    Manalapan, Town of South Palm Beach and Town of Palm Beach.
    2
    WOLF, J.
    Appellants (Bruce Rosenzweig, Boca Raton Bicycle Club, and League of
    American Bicyclists) challenge a final order rendered by the Interim Secretary of the
    Department of Transportation (Department), appellee, which adopted the factual and
    legal findings of the hearing officer’s Recommended Order. The order concluded that
    appellants did not have administrative standing to challenge the Department’s
    implementation of section 335.065, Florida Statutes, and it interpreted section
    335.065, Florida Statutes, as giving the Department almost absolute discretion in
    dispensing with bicycle lanes on state road projects. Although we find that appellants
    had standing to challenge the Department’s implementation of section 335.065 in the
    State Road A1A project and we agree with appellants’ interpretation of section
    335.065, Florida Statutes, we are constrained to affirm the final order because
    appellants waived their right to go to a formal hearing before the Division of
    Administrative Hearings by not requesting a formal hearing at any time. Accordingly,
    we affirm the Final Order.
    Facts
    Appellants filed an amended administrative petition against the Department
    alleging that the Department failed to comply with statutory law and administrative
    rules pertaining to the design and placement of bicycle lanes in conjunction with the
    3
    resurfacing, restoration, and rehabilitation of State Road A1A in Palm Beach County.
    The amended petition stated that petitioners did not know if there were disputed issues
    of material fact and also asserted that the cost of placing standard five-foot bicycle
    lanes throughout parts of the project would not be excessively disproportionate to the
    need or probable use of such. Because the amended petition did not identify any
    disputed issues of material fact, pursuant to section 120.57(2), Florida Statutes, an
    informal hearing was set for December 11, 2006.
    On or about November 13, 2006, a petition to intervene was filed by the Town
    of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, South Palm Beach, and
    Palm Beach (Intervenors). The Order Granting Intervention was filed on November
    16, 2006.
    An informal hearing took place before the Department’s hearing officer on
    December 11, 2006. Appellants used their exhibits to argue the Department owns
    significant right-of-way in 90% of the State Road A1A project and that a five-foot
    bicycle lane along that right-of-way would be feasible. The Department, on the other
    hand, called the district consultant project manager, and he testified the Department
    considered several aspects of the project in determining that a five-foot bicycle lane
    would not be feasible. The project manager explained that the entire State Road A1A
    project was comprised of ten smaller projects beginning in Boca Raton and ending in
    4
    Lake Worth. He explained which factors were considered by the Department in either
    establishing or not establishing bicycle lanes in each of the ten projects. Factors
    considered by the Department included: 1) whether a bicycle lane was pre-existing;
    2) the number of developments with sidewalks; 3) the characteristic of the landscape,
    driveways, utilities, vertical drains; 4) the impact on private facilities; 5) the presence
    of the statutorily protected Australian pines; 6) Resolution 5402 (entered into by
    several towns affected by the State Road A1A project); 7) the ocean and ocean levels;
    and 8) the narrowness of the available right-of-way. The project manager further
    testified the Department conducted a cost-benefit analysis and also considered the
    crash data available.
    At no point during the informal hearing did appellants notify the hearing officer
    that there was a disputed issue of material fact requiring the case to be transferred to
    the Division of Administrative Hearings (DOAH).
    The hearing officer filed a Recommended Order on February 26, 2007,
    concluding appellants did not have administrative standing to challenge the
    Department’s actions, and it also concluded that section 335.065, Florida Statutes,
    gives the Department discretion to implement the statute and does not require bicycle
    lanes and pedestrian ways to be established above all other concerns.
    5
    Standing
    Whether appellants have standing to challenge the Department’s
    implementation of section 335.065, Florida Statutes, is a question of law. The
    standard of review of an agency decision based upon an issue of law is whether the
    agency erroneously interpreted the law and, if so, whether a correct interpretation
    compels a particular action. Fla. Hosp. v. Agency for Health Care Admin., 823 So.
    2d 844, 847 (Fla. 1st DCA 2002) (citing 120.68(7)(d), Fla. Stat. (1997)).
    Section 120.52(12)(b), Florida Statutes, provides that a party to an
    administrative proceeding is “any person . . . whose substantial interests will be
    affected by proposed agency action, and who makes an appearance as a party.”
    Substantial interests are demonstrated if: 1) the party will suffer injury in fact which
    is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) the party’s
    substantial injury is of a type or nature which the proceeding is designed to protect.
    Agrico Chem. Co. v. Dep’t of Envtl. Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA
    1981); see also Envtl. Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857
    So. 2d 207, 209 (Fla. 1st DCA 2003) (“[A]n organization must show that it will suffer
    an injury in fact or that the action of the agency will adversely affect its individual
    members.”). The first aspect of the test deals with the degree of injury; the second
    deals with the nature of the injury. Agrico, 406 So. 2d at 482.
    6
    The Department argues that appellants do not have standing and supports this
    position by citing to several cases where taxpayers challenged the decision of a
    legislative body to make an expenditure. However, while in taxpayer cases the strict
    rules for standing have been established to limit unwarranted use of judicial resources
    in challenges involving discretional decisions of legislative bodies, one of the major
    legislative purposes of the Administrative Procedure Act was the expansion of public
    access to the activities of governmental agencies. Fla. Home Builders Ass’n v. Dep’t
    of Labor, 412 So. 2d 351, 352-53 (Fla. 1982) (allowing builders’ association the
    opportunity to represent the interests of its injured members in a rule challenge).
    In NAACP, Inc. v. Florida Board of Regents, the supreme court was asked to
    determine whether the NAACP had standing to challenge a rule amendment
    concerning admissions to the State University System. 863 So. 2d 294, 295 (Fla.
    2003). Specifically, the rule amendments concerned the elimination of certain
    affirmative action policies by Florida’s state universities. Id. This court, in NAACP,
    Inc. v. Florida Board of Regents, 822 So. 2d 1, 14 (Fla. 1st DCA 2002), had
    previously found the organization did not have standing, but certified the question as
    one of great public importance.
    The supreme court applied the “associational standing” analysis discussed in
    Florida Home Builders, 412 So. 2d at 352, to the facts before them. NAACP, 863 So.
    7
    2d at 297. They reiterated that the purpose of the Administrative Procedure Act was
    to expand rather than restrict public participation in the administrative process. Id. at
    298. Accordingly, the supreme court enunciated the following:
    To meet the requirements of section 120.56(1), an association must
    demonstrate that a substantial number of its members, although not
    necessarily a majority, are “substantially affected” by the challenged
    rule. Further, the subject matter of the rule must be within the
    association’s general scope of interest and activity, and the relief
    requested must be of the type appropriate for a trade association to
    receive on behalf of its members.
    Id. (citing Fla. Home Builders, 412 So. 2d at 353-54.) Pursuant to this test, the
    supreme court found that the NAACP had standing to challenge the proposed rules as
    the proposed rules would drastically change the state university admission standards
    that applied to African-Americans and other minority students. Id. at 299. The
    supreme court further stated: “the cost of instituting and maintaining a rule challenge
    proceeding may be prohibitive” for the NAACP’s members, who are often poor and
    unable to maintain individual rule challenges. Id. (citing Fla. Home Builders, 412 So.
    2d at 353).
    Considering the APA’s policy, the supreme court’s decision in NAACP, and
    the factors enunciated in Agrico, it is clear that if anyone has the ability to challenge
    the Department’s interpretation of section 335.065, which specifically relates to
    bicycle lanes, it would be those seriously involved in bicycling.
    8
    Under the first prong of the Agrico test, appellants will suffer an injury of
    sufficient immediacy entitling them to a 120.57 hearing. Agrico, 406 So. 2d at 482.
    This is clear because they will not have a delineated path on which to ride their
    bicycles if bicycle lanes are not constructed pursuant to the Department’s standards.
    Under the second prong of the Agrico test, appellants’ substantial injury is of the type
    which the proceeding is designed to protect. Id. As we will discuss below, section
    335.065, Florida Statutes, is entitled “Bicycle and pedestrian ways along state roads
    and transportation facilities.” The statute, as analyzed below, sets forth a policy for
    incorporating bicycle lanes in construction and reconstruction projects, and it further
    delineates situations where the Department need not establish the bicycle lanes.
    335.065, Fla. Stat. The statute’s straightforward purpose is to regulate the placement
    of bicycle and pedestrian ways. Reason dictates that a bicyclist organization, like
    appellants, can demonstrate that a substantial number of its members will be affected
    by the Department’s decisions relating to the construction of bicycle paths. See
    NAACP, 863 So. 2d at 298. Additionally, the association’s general scope of interest
    and activity (bicycling), and the relief requested (the establishment of bicycle lanes
    in the State Road A1A reconstruction project), is of the type appropriate for appellants
    to receive on behalf of its members. Id. Furthermore, the cost for individuals to
    9
    challenge the establishment of bicycle lanes may be prohibitive to individual
    bicyclists. Id. at 299.
    Thus, a challenge to the Department’s application of the statute by a bicyclist
    organization located in Palm Beach County meets the standing requirement delineated
    in Agrico. See also Gregory v. Indian River County, 610 So. 2d 547 (Fla. 1st DCA
    1992) (finding homeowners had a substantial interest in administrative proceeding
    before the Department of Environmental Regulation where the county sought a permit
    to construct a stormwater treatment system and engage in dredge and fill activities and
    homeowners faced potential injury if their land was declared to be wetlands or needed
    for mitigation; also explaining the purpose of Agrico).
    In this case, appellants’ substantial interests will be affected by the
    Department’s proposed action. Thus, we agree with appellants and find they had
    standing to challenge the Department’s actions.
    Interpretation of Section 335.065, Florida Statutes
    While the parties argue over the interpretation of section 335.065, Florida
    Statutes, we find the statute is unambiguous. It provides, in relevant part:
    335.065. Bicycle and pedestrian ways along state roads and
    transportation facilities
    (1)(a) Bicycle and pedestrian ways shall be given full consideration in
    the planning and development of transportation facilities, including the
    incorporation of such ways into state, regional, and local transportation
    *The Department argues that other statutory sections must be taken into account
    in whether to construct bicycle and pedestrian ways; in light of our decision, it is
    unnecessary for us to reach that issue.
    10
    plans and programs. Bicycle and pedestrian ways shall be established in
    conjunction with the construction, reconstruction, or other change of any
    state transportation facility, and special emphasis shall be given to
    projects in or within 1 mile of an urban area.
    (b) Notwithstanding the provisions of paragraph (a), bicycle and
    pedestrian ways are not required to be established:
    1. Where their establishment would be contrary to public safety;
    2. When the cost would be excessively disproportionate to the need or
    probable use;
    3. Where other available means or factors indicate an absence of need.
    We interpret this statute to mean that the Department is obligated to consider
    bicycle and pedestrian ways in the planning process and to establish bicycle and
    pedestrian ways in conjunction with the construction, reconstruction, or other change
    of any state transportation facilities. 335.065(1)(a), Fla. Stat. Bicycle paths shall
    be established unless the Department exercises its discretion not to establish bicycle
    and pedestrian ways where any of the conditions in section 335.065(1)(b) are
    demonstrated.* Accordingly, we agree with appellants’ interpretation of the statute
    and find that the Department’s discretion is limited.
    11
    However, the hearing officer found, and the final order so adopted, that the cost
    would be excessively disproportionate to the need or probable use of the bicycle and
    pedestrian ways. Thus, although we agree with appellants’ interpretation of the
    statute, the finding that the cost of incorporating bicycle paths throughout the State
    Road A1A project would be excessively disproportionate to their need or probable use
    compels this court to affirm the Department’s decision.
    Waiver of Formal Hearing
    If an agency’s action will determine the substantial interests of a party and there
    are disputed issues of material fact, a party is entitled to a formal proceeding under
    section 120.57(1), Florida Statutes. 120.569(1), Fla. Stat. Unless waived by all
    parties, an informal hearing is appropriate whenever the substantial interests of a party
    are determined, but no material facts are in dispute. Id.; see also Weiss v. Dep’t of
    Bus. & Prof’l Regulation, 677 So. 2d 98, 99 (Fla. 5th DCA 1996) (“When material
    facts are not in dispute, an agency is not required to grant a formal proceeding, even
    though requested by the party, and is free to insist that the matter be handled by
    informal proceeding.”). Accordingly, because there were no disputed issues of
    material fact alleged in appellants’ petition, the Department acted properly in granting
    appellants an informal hearing.
    12
    However, during the informal hearing, it became apparent that there were
    disputed issues of material fact. We agree with appellants that, whether or not the cost
    of incorporating bicycle paths in the State Road A1A project was excessively
    disproportionate to its need or probable use, is a question of fact. While appellants
    asserted that such cost was not excessive, the Department introduced, throughout the
    informal hearing, evidence that the cost would be excessive. Thus, the parties were
    on notice during the informal hearing that there were disputed issues of material fact
    in this case which necessitated a formal hearing. Neither the Department nor
    appellants apprised the hearing officer of this issue.
    It is well established that a claim of error, even in the administrative context,
    cannot be raised for the first time on appeal. See Goodson v. Fla. Dep’t of Bus. &
    Prof’l Regulation, Div. of Real Estate, No. 1D07-1468 (Fla. 1st DCA February 11,
    2008) (citing Twins D &D, Inc. v. Dep’t of Bus. & Prof’l Regulation, 722 So. 2d 234
    (Fla. 2d DCA 1998); Shady Oaks Mobile Modular Estates, Inc. v. Fla. Pub. Serv.
    Comm’n, 654 So. 2d 678 (Fla. 1st DCA 1995)). In Goodson, this court interpreted
    section 455.225(5), Florida Statutes, which requires that “[i]f any party raises an issue
    of disputed fact during an informal hearing, the hearing shall be terminated and a
    formal hearing pursuant to chapter 120 shall be held.” Id. This court acknowledged
    the mandatory language of the provision, but held that even this mandatory provision
    13
    was subject to the rule of preservation. Id. Likewise, in this case, because appellants
    failed to preserve this issue for appellate review, this court is constrained to affirm the
    order on appeal.
    We acknowledge that our decision today may be viewed to be in conflict with
    Campbell v. Department of Business and Professional Regulation, Division of Real
    Estate, 868 So. 2d 1265 (Fla. 4th DCA 2004), and Meller v. Florida Real Estate
    Commission, 902 So. 2d 325 (Fla. 5th DCA 2005). Those cases, however, do not
    specifically address whether the parties asked for a formal hearing once disputed
    issues of material fact became known. To the extent they may be read to mean that
    a party may raise the issue of failure to grant a formal hearing without making such
    a request before the agency, we reject such interpretation. The decision of the
    Department is affirmed.
    PADOVANO, J., CONCURS; BENTON, J., CONCURS WITH OPINION.
    14
    BENTON, J., concurring.
    “When material facts are not in dispute, an agency is not required to grant a
    formal proceeding and is free to insist that the matter be handled by informal
    proceedings.” Hobe Assocs., Ltd. v. Dep’t of Bus. Regulation, 504 So. 2d 1301, 1305
    (Fla. 1st DCA 1987). But, when material facts are in dispute, substantially affected
    parties are entitled to an evidentiary hearing conducted in conformity with sections
    120.569 and 120.57(1), Florida Statutes (2007). See J.M. v. Fla. Agency for Persons
    with Disabilities, 938 So. 2d 535, 537 (Fla. 1st DCA 2006); Gopman v. Dep’t of
    Educ., 908 So. 2d 1118, 1120-21, 1123 (Fla. 1st DCA 2005). A timely petition for
    such a hearing secures the right. See Dep’t of Transp. v. Lopez-Torres, 526 So. 2d
    674 (Fla. 1988); City of Sarasota v. State, Dep’t of Transp., 783 So. 2d 1186 (Fla. 1st
    DCA 2001).
    Even if a dispute of material fact emerges after an informal hearing has begun,
    the informal hearing should cease and a formal hearing should be convened in its
    stead, “[n]otwithstanding . . . [a prior] written election for an informal hearing.”
    Mixon v. Dep’t of State, Div. of Licensing, 686 So. 2d 755, 756 (Fla. 1st DCA 1997).
    In order to preserve the point for appeal, however, a party must “request that the
    informal hearing be terminated . . . or otherwise object to the continuation of the
    15
    [section 120.57(2)] proceedings.” Goodson v. Fla. Dep’t of Bus. & Prof’l Regulation,
    Div. of Real Estate, No. 1D07-1468 (Fla. 1st DCA Feb. 19, 2008).

  4. #4
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    The bad news here is that The Florida Department of Transportation has no concrete requirement placed on them, no concrete objectives or progress markers.

    The good news is that they at least need to justify to the public why they have chosen not to place a bike path in an area. Those exceptions are common sense ones designed not to force the hand of the DoT to do something that would waste resources.

    Florida Cyclists need to keep the DoT honest, and challenge them in court when they try to get away with making weak arguments against the placement of bike lanes.

  5. #5
    Ride the Road Daily Commute's Avatar
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    Quote Originally Posted by irabidfish View Post
    The bad news here is that The Florida Department of Transportation has no concrete requirement placed on them, no concrete objectives or progress markers.

    The good news is that they at least need to justify to the public why they have chosen not to place a bike path in an area. Those exceptions are common sense ones designed not to force the hand of the DoT to do something that would waste resources.

    Florida Cyclists need to keep the DoT honest, and challenge them in court when they try to get away with making weak arguments against the placement of bike lanes.
    No "concrete requirement placed on them, no concrete objectives or progress markers" but lots of more lawsuits. Yeah, that's an argument that will convince other places to adopt Complete Streets(TM).

    And why do you say the law requires bike lanes or bike paths? The statute only appears to require bicycle "ways," whatever those are. To the extent striped lanes or paths are required, it appears to be only a matter of internal Florida DOT rules, which Florida DOT can change.

  6. #6
    Domestique
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    Under Florida law (which adopts federal standards), a "bicycle way" is a bicycle lane at least 4 feet wide (if a curbed road) or 5 feet wide (if no curb).

  7. #7
    www.theheadbadge.com cudak888's Avatar
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    Quote Originally Posted by atarifl View Post
    Under Florida law (which adopts federal standards), a "bicycle way" is a bicycle lane at least 4 feet wide (if a curbed road) or 5 feet wide (if no curb).
    "Bicycle way" or "Bicycle Lane?"

    Reason I ask is because if "bicycle way"= bike lane, it would negate the legality of the 3' wide so-called bike-lanes on Alhambra Blvd. in Coral Gables.

    -Kurt

  8. #8
    Domestique
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    The 4 foot/5 foot rule is only mandatory on "state roads". For local roads, the Florida "Greenbook" provides for 4foot/5 foot bike lanes as a design and engineering standard, but that's only a guideline and may (depending on local law) not be absolutely binding on the municipality.

    The "bike way" definition was explained by FDOT in their report to the Florida Legislature:

    http://www.dot.state.fl.us/safety/pe...xecSummary.pdf

  9. #9
    Conservative Hippie
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    There are state roads around here that have been resurfaced since this law took affect. All it is, is a paved shoulder, no signage, no pavement markings. Which suits me fine. Whether I use it or not depends on the situation.

  10. #10
    Ride the Road Daily Commute's Avatar
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    Quote Originally Posted by atarifl View Post
    The 4 foot/5 foot rule is only mandatory on "state roads". For local roads, the Florida "Greenbook" provides for 4foot/5 foot bike lanes as a design and engineering standard, but that's only a guideline and may (depending on local law) not be absolutely binding on the municipality.

    The "bike way" definition was explained by FDOT in their report to the Florida Legislature:

    http://www.dot.state.fl.us/safety/pe...xecSummary.pdf
    First, a pdf of a report to the legislature is not law. Do you know of any actual statutes or rules that support your position that Florida law requires striped bike lanes in all road projects? If the only thing that binds Florida DOT is a report they issued to the legislature, what prevents them from issuing a new report tomorrow?

    Second, I still don't think the report you linked to says that all bike ways must have striped bike lanes. It says that bike lanes are bike ways, but I don't see how it says that all bike ways are bike lanes. Squares and rectangles:

    Quote Originally Posted by Report of Florida DOT to legislature
    Designated bicycle lanes refer to onroad bikeways in urban areas with bicycle logo/arrow pavement markings (person on bike symbol) and signs indicating that it is a bicycle lane. Designation of onroad bikeways occurs at the local level and FDOT and its partners do not usually designate onroad bikeways on rural roads. A feature code in FDOT’s Roadway Characteristics Inventory (RCI) database was recently developed for onroad bikeway information, including designation status. Because of recent implementation, onroad bikeway information in the RCI database is currently not complete statewide. Because there are no current comprehensive data statewide, FDOT RCI video logs were used to estimate the extent of designated onroad bikeways. A sample of all existing onroad bikeways in urban areas statewide was evaluated and the results illustrate that approximately 19 percent of onroad bikeways in urban areas have pavement markings and signs. These data were also verified in the field. While this figure represents a sample, it shows that approximately 2,500 miles of existing onroad bikeways in the state’s urban areas could be designated with standard pavement markings and signs. Designated bicycle lanes should encourage use of such facilities by bicyclists.
    Last edited by Daily Commute; 03-26-08 at 03:38 AM.

  11. #11
    Domestique
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    Fla. Stat. 335.065 says that "Bicycle and pedestrian ways shall be established in conjunction with the construction, reconstruction, or other change of any state transportation facility, and special emphasis shall be given to projects in or within 1 mile of an urban area.
    (b) Notwithstanding the provisions of paragraph (a), bicycle and
    pedestrian ways are not required to be established:
    1. Where their establishment would be contrary to public safety;
    2. When the cost would be excessively disproportionate to the need or
    probable use;
    3. Where other available means or factors indicate an absence of need.

    Yesterday's decision makes this rule binding on FDOT. FDOT previously said the application of this was discretionary, and included other factors such as the desires of the local municipalities to avoid bicycle lanes on main roads. While everybody was disappointed that they aren't making FDOT repave A1A in Palm Beach (and there will be further proceedings on that issue), that road is already done and it was unlikely the court was going to make them do it over. The footnote in the decision is irrelevant, because the other rules cited by FDOT were BS.

    Unless you meet items 1 through 3, bike ways are required on state roads. The Chapter 8 of the state PPM (which has the force of law under the administrative code) defines such bike ways as 4 foot (marked or unmarked) on curbed roads and 5 foot on uncurbed roads.

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    feros ferio John E's Avatar
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    I just want to see a requirement for safe and efficient pedestrian and bicycle accommodations on all public roads. For cyclists, I shall gladly accept a wide outer lane or a low speed limit in lieu of a striped bike lane -- what I do not want is an unsharably narrow outer lane with something like a 50mph / 80kph speed limit. Similarly, I do not want to see freeway-style high speed free merges or unions which violate fundamental principles of traffic engineering by bringing faster traffic in to the right of slower traffic (e.g., bicycles).
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    My reading is that it is a victory for the DOT.

    At the admin hearing the DOT made a factual finding that bike lanes are not financially feasible, a consideration they are allowed to make under the statute. The appellants (who I might add were represented by some heavy hitter law firms, eg Ackerman Sennerfit) failed to raise a procedural issue at the hearing phase and therefor were blocked from raising the issue of financial feasability on appeal.

    In the future, it looks like DOT will always say "sorry, its too expensive" when confronted as to why they do not include bike lanes in construction projects, at least this decision says that if properly preserved, the appellate court can look at whether the DOT's determination of financial unfeasability is proper.
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    -=Barry=- The Human Car's Avatar
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    Quote Originally Posted by San Rensho View Post
    In the future, it looks like DOT will always say "sorry, its too expensive" when confronted as to why they do not include bike lanes in construction projects, at least this decision says that if properly preserved, the appellate court can look at whether the DOT's determination of financial unfeasability is proper.
    You really need to look into the "sorry, its too expensive" excuse as most of the time (from my experience) it really means:
    1. It's too cheep.
    2. Whoops we forgot about cyclists from the get go and now we are are too far along in the design to go back and fix things.


    To understand the too cheep comment you need to understand that funding comes from two primary sources; routine road maintenance funds and the capital improvement budget. Trying to add bicycling improvements to a routine maintenance budget does not make a lot of sense as we want to improve things and the maintenance budget is not a part of the long term planning and does not qualify for Federal Aid so all funding has to come locally. But wait don't bike projects qualify for Federal Aid? Yes BUT States administer Federal Funds through the Capital Budget so if it's not expensive enough to qualify as a capital improvement it gets denied Federal Aid so if a bike improvement is too cheep it's basically screwed.

    Typically States are not spending our fair share of Federal Transportation Enhancement and Safety Set Aside funds (just to name some funding sources) on bicycle improvements. The money is there, it's the process that is not inline with what we need it to do. If bike projects are losing out to a more qualified bike project, well that's life in a way but when a $10 thousand bike road improvement project lose out across the board to $150 million trails there is something wrong with the system. Now don't get me wrong I love trails but when people who live near trails cannot comfortable bike there, the balance of how funding is spent is seriously off (just to mention one argument.)

    Seriously question the "too expensive" argument and look at what other bike projects are making the grade and which ones do not and be very aware of this black hole that exists between expensive bike projects and cheep bike projects and get it removed.
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    Senior Member Kurt Erlenbach's Avatar
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    There is at least one very important point made in the case. FDOT argued that the bicycle club and the LAB lacked standing to contest the lack of bike lanes in the resurfacing prject. After extensive discussion, the appellate court held, "[I]t is clear that if anyone has the ability to challenge the Department's interpretation of section 335.065, which specifically relates to bicycle lanes, it would be those seriously involved in bicycling." (emphasis in original)

    Standing is always an important issue in these kinds of matters. Standing is the legal concept of "who gets to sue." Although there are many rights set out in statutes, you have to show acutal harm, usually, before you can sue to have your rights vindicated. It's tough to sue the phone companies over them allowing the government to screen your calls, for example, unless you can prove that your calls have been screened. The court here ruled that cyclists have standing to sue over road plans that eliminate bike lanes contrary to the intent of the statute, and that's important.

    Having dealt with Florida's Administrative Procedures Act, it is fair to call it a procedural minefield. The cyclists here stepped on one of the mines and lost the case (the failure to ask for a formal rather than informal hearing). While they lost, they led the way for other Florida cyclists in the next case, and that is important.

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    Quote Originally Posted by atarifl View Post
    Fla. Stat. 335.065 says that "Bicycle and pedestrian ways shall be established in conjunction with the construction, reconstruction, or other change of any state transportation facility, and special emphasis shall be given to projects in or within 1 mile of an urban area.
    (b) Notwithstanding the provisions of paragraph (a), bicycle and
    pedestrian ways are not required to be established:
    1. Where their establishment would be contrary to public safety;
    2. When the cost would be excessively disproportionate to the need or
    probable use;
    3. Where other available means or factors indicate an absence of need.
    The DoT is required to make findings (legal footprint explaining a decision) regarding all of those decisions, it cannot just be arbitrary. It still might be arbitrary, but if it is it wont hold up in a legal attack.

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    Under the statutory procedures established by the Florida Legislature to challenge decisions from administrative agencies such as FDOT, if the dispute includes a need to determine facts (such as how much something costs), the agency (FDOT) is required to refer the matter to an impartial third-party (the Department of Administrative Hearings or "DOAH") to conduct a "formal" hearing, with testimony, etc., to make a determination of what the "facts" actually are.

    On the other hand, if the dispute is not about facts, but only the application of rules or laws to agreed-upon facts, the agency can proceed "informally" (which is what occurred here) and set the matter before a "hearing officer" of its choosing (in this instance, FDOT's Chief Engineer).

    However, if during that informal hearing, it becomes apparent that there is a dispute as to facts, we believe the agency is obligated, under rule, to stop the hearing and transfer the matter to DOAH to conduct the formal hearing we described above.

    The questions posed by the court during oral argument, and apparently answered in the opinion were:

    (1) Whether FDOT, by setting the matter for an "informal" hearing, implicitly agreed to the facts we alleged in our complaint?

    Answer: Apparently no.

    (2) Once (and if) it became apparent during the informal hearing that FDOT was relying upon facts that the plaintiffs otherwise disputed in their complaint (such as, they asserted in the complaint that the cost of building the bike lanes did not outweigh the need), who has the burden of suspending the hearing and requesting a formal hearing, the plaintiffs or FDOT? If it was the plaintiffs, and if FDOT then places those otherwise disputed facts into the Final Order, are we then stuck with those findings of fact?

    Answer: Yes. You are stuck with those facts, even though the focus of the hearing had nothing to do with the cost of bike lanes but only the strict legal question of whether the statute requires bike lanes at all.

    The plaintiffs were able to identify (after the hearing) a case which appears to be almost directly on point, which concluded that a party cannot "waive" the right to a formal hearing, notwithstanding that it became apparent during an informal hearing that there was a factual dispute. The plaintiffs were able to file a copy of that case with the court for its review during its deliberations on the matter. Moreover, the court itself cited to another case supporting the plaintiffs. However, the court decided to disregard that precedent (as it is allowed to do) and go out on its own.

    Did the plaintiffs' attorneys' drop the ball? No. Did the court find a way to give FDOT an "out" and to placate the wealthy Republicans who live on A1A? Absolutely.

    Welcome to the United States, land of the free, home of the special interest.

  18. #18
    Senior Member Kurt Erlenbach's Avatar
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    EmptyCup-

    You seem to have some inside information on this case, so I'd like to know just what the thinking was that led to the plaintiffs not asking for a formal hearing. It seems apparent to me (maybe it's 20/20 hindsight) that the disputed issue from the outset was whether in fact any of the exceptions to the statute existed. When the agency indicates by its action that they believe they do, and the plaintiffs allege that they do not, it seems that an issue of fact exists from the start, thereby requiring a formal DOAH hearing. If FDOT se the case for an informal hearing, it seems to be a dangerous assumption by the plaintiffs that FDOT was agreeing that no factual dispute existed. The position that a formal hearing is required to resolve an issue of fact is not new law. Am I wrong?

  19. #19
    ♋ ☮♂ ☭ ☯ -=(8)=-'s Avatar
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    Quote Originally Posted by EmptyCup View Post
    Welcome to the United States, land of the free, home of the special interest.
    The condo/developer/pol/payoff situation here would e proof of this as it
    applies to Florida.

    Great stuff, EmptyCup !!
    A1A seems to be the part of S. Fl that has the best lanes, though......
    We need more up Rt. 1 and those sprawl areas.

    When I moved here and researched bike stuff I read a law saying Fl. has a total
    'vehicle / Ped Policy' that determines anytime a road is modified or repaired a
    lane must be built in. We are only one of about 4 states that have this policy.
    I guess common sense here realistically never stood a chance.

    My first priority in all the letters I send out and assume get deleted after the
    official person designated to take payoffs from developers gets into the first
    paragraph is to do something about calming the drivers down around here.
    Seriously, the most dangerous and criminal antics Ive ever seen. I cant see
    how it got to this point and nobody cares.
    -ADVOCACY-☜ Radical VC = Car people on bikes. Just say "NO"

  20. #20
    Ride the Road Daily Commute's Avatar
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    I think the lessons from this case may be:
    1. Other states should be careful about enacting similar Complete Streets(TM) legislation because, to quote irabidfish, the law creates, "no concrete requirement placed on them, no concrete objectives or progress markers," but opens any government that adopts it up to lots of lawsuits;
    2. All the Florida DOT need do to undo a loss in court is change its own "PPM Manual" over which it apparently has complete and unilateral control (Florida people, I say "apparently" because I'm not sure, so please correct me if I'm wrong).

    Also, could someone please explain why "standing" is such a big win? If the LAB couldn't sue, wouldn't they only need a single cyclist who would say that he or she would ride a given road?

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    First of all, the narcissistic cycling community is showing its true colors again. Not satisfied that a law firm took this case for free, when no others would, they complain about the outcome, rather than being appreciative of what has been achieved. Moreover, I question why the law firm took the case in the first place, when the bulk of the South Florida cycling community acts like irrational children on the road and doesn't deserve what they have been given!

    The published and stated scope of the hearing was SOLELY to determine whether the statute required bike lanes at all, as FDOT asserted that the statute requiring bike lanes is discretionary and therefore, they were also not required to memorialize their reasons for not including bike lanes in the first place.

    What people don't know is that, initially, the plaintiffs sued FDOT in circuit court (regular court), seeking an order that FDOT file the mandatory "design exceptions" as required by the PPM, which would memorialize why bike lanes were excluded from the project (as the PPM requires all critical design elements that do not meet AASHTO standards to be documented and justified under specifically enumerated criteria). At that hearing, FDOT claimed that the plaintiffs did not have standing and had failed to exhaust their administrative remedies. The plaintiffs countered that they had no administrative "point of entry" since no PPM-compliant "design exception" had been filed. FDOT agreed to file the documents and, if the plaintiffs still had a problem, the parties agreed to file an administrative complaint under Chapter 120, Florida Statutes.

    FDOT then did file the design exceptions, but again wholly failed to address bike lanes at all.

    The plaintiffs then filed an administrative complaint and stated, clearly, what the facts were, and that they were uncertain if there was any "material facts in dispute" regarding bike lanes as FDOT refused and/or failed to file a design exception record indicating their reason for doing so.

    FDOT received the complaint and set the matter for an "informal" hearing, NOT to determine any fact, but ONLY to determine the singular issue of whether the statute requires bike lanes at all (you can get a copy of the "Notice of Hearing" if you want).

    During the hearing, FDOT's "Bike Lane Feasibility Study" was introduced by the plaintiffs which claimed that there was sufficient right of way to put in 4-5 bike lanes where that right of way existed. That document (and all of the others placed into evidence) was introduced not for the truth of the matter asserted (sufficient right of way), but to address the issue at bar - that FDOT itself admits that bike lanes are a mandatory part of resurfacing projects - which was the limited scope of the hearing.

    FDOT's attorney then started to discuss an un-attached (but internally referenced) appendix to the study, which claimed that it would cost $50 million dollars to put in a continuous, 5-foot wide bike lane. The plaintiffs stated that this appendix was not made a part of the record by either the plaintiffs or FDOT (as no one could find it) and moreover, it was a "draft" study, never formally adopted by the department. In any event, the plaintiffs paid it no real attention since it was NOT MATERIAL to the LIMITED SCOPE of the hearing (what does the cost of bike lanes have to do with whether a statute requires bike lanes in the first place?!?!).

    When the hearing was over, FDOT issued its Final Order, which found that: (1) the plaintiffs do not have standing to even challenge FDOT in their design of the roadways; (2) the statute is discretionary and does not require bike lanes in resurfacing projects; and (3) even if the statute applied, the "cost was disproportionate to the need", which is one of the 3 statutory exceptions to bike lane requirements. Moreover, FDOT dismissed the action in the Final Order based solely on the standing issue.

    Moreover, FDOT "couched" this "finding of fact" as a "conclusion of law" [question - if it was so apparent to everyone that this was a material fact in dispute that should have been objected to, why did FDOT declare it to be a "conclusion of law" in the Final Order, rather than a "Finding of Fact"?].

    This last part was very sneaky, and just goes to show you whose side FDOT is on. Not yours! Not to protect the safety of the public, but rather, to make sure the few homeowners along A1A can keep their 50 feet of state-owned grass in front of the gates to their guest houses which are another 200 feet in front of their mansions on their effectively private beaches.

    So the plaintiffs appealed. In their answer brief, FDOT never once suggested that this was a fact issue that was dispositive and that the plaintiffs waived their right to a formal hearing on the question. Their brief overwhelming

    At oral argument before the 1st DCA (which you can watch online, www.1dca.org), the court was clearly unimpressed with FDOT's arguments on standing and the applicability of the statute. However the court, on its own, jumped all over the "red herring" thrown in the Final Order by FDOT of the $50MM and ultimately, as we all saw, based its final opinion on the plaintiffs' apparent failure to object below to that "finding of fact". The court did not give the plaintiffs a chance to brief the issue and therefore, as I understand, they are now considering whether to do so and file a motion for rehearing on this particular issue.

    Still want to play Monday Morning Quarterback? Then get your facts straight.

  22. #22
    ♋ ☮♂ ☭ ☯ -=(8)=-'s Avatar
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    Quote Originally Posted by EmptyCup View Post
    First of all, the narcissistic cycling community is showing its true colors again. Not satisfied that a law firm took this case for free, when no others would, they complain about the outcome, rather than being appreciative of what has been achieved. Moreover, I question why the law firm took the case in the first place, when the bulk of the South Florida cycling community acts like irrational children on the road and doesn't deserve what they have been given!
    Are there specific areas you base this on, EmptyCup ?
    My cycling is utilitarian and is limited to Tequesta into West Palm
    and I havent seen anything that could remotely be called a 'community'
    or irrational behavior from the 5 or 6 other commuters that I see, daily.
    I see the usual Carbon - Lycriod Roadie set on A1A but they seem happy
    to stay in the lanes or on the sidewalks. There are lots of crackheads
    cycling in Riviera Beach but I dont think the stuff being discussed here
    applies to them. I believe me and like minded people do deserve lanes
    unless the police are going to protect us and that just isnt going to happen.
    I dont think anyone needs to be harmed because a spoilt West Palm yup
    needs to get to the Gardens in time for Happy Hour. Whatever the solution
    might be, people in a society should not have to suffer because the lowest
    element thinks they are an inconvenience.
    Last edited by -=(8)=-; 03-27-08 at 04:52 PM.
    -ADVOCACY-☜ Radical VC = Car people on bikes. Just say "NO"

  23. #23
    Ride the Road Daily Commute's Avatar
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    Quote Originally Posted by EmptyCup
    First of all, the narcissistic cycling community is showing its true colors again. Not satisfied that a law firm took this case for free, when no others would, they complain about the outcome, rather than being appreciative of what has been achieved. Moreover, I question why the law firm took the case in the first place, when the bulk of the South Florida cycling community acts like irrational children on the road and doesn't deserve what they have been given!
    If you believe that, "the bulk of the South Florida cycling community . . . . doesn't deserve what they have been given," then I don't see how anyone can take you seriously as a cycling advocate. I hope you are not an employee of the law firm that argued this case, because the LAB deserves better from its lawyers.

    Most of my comments were questions about the real impact and value of the decision. If it's such a great opinion, you should have found it easy to answer them instead of relying on ad hominem attacks.

    You also seem to believe that LAB represents the entire cycling community. It does not. See, for example, http://www.labreform.org/, or look at all the fights in the Vehicular Cycling subforum. Some years ago, the LAB switched from promoting education and the right to use the road to support for special-needs segregated "bike facilities." Many of us think that switch was unwise.

    For the same reasons, some cyclists don't support Complete Streets(TM), and I opposed its adoption in my community. I also oppose the LAB's efforts to force cities to stripe lanes where striped lanes don't belong. The threat of endless lawsuits like this case provides fodder for those of us who want to discourage cities and states from enacting Complete Streets(TM) programs.

    The law firm that took on this fight chose to side with one group of cyclists over other cyclists. It's great that they want to do free work that they believe benefits cyclists (the lawyers could have taken a vacation, but instead decided to work for free), but they are not above criticism from cyclists who have a different perspective than the LAB.

    Finally, yes, I am biased. Who isn't? But my questions about the true value of the opinion have gone unanswered. If this is opinion is so good for cyclists, tell us why. To me, it looks like the "victories" were either minor ("standing") or subject to FDOT's unilateral right to change the manual on which the LAB based its argument. If I'm wrong (and I could be wrong), explain why.

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    [But my questions about the true value of the opinion have gone unanswered. If this is opinion is so good for cyclists, tell us why. To me, it looks like the "victories" were either minor ("standing") or subject to FDOT's unilateral right to change the manual on which the LAB based its argument. If I'm wrong (and I could be wrong), explain why.
    Other Florida Statutes required FDOT to adopt "uniform minimum standards for the design of roadways" to include bike lane design. Those rules were adopted pursuant to law and therefore cannot be changed outside of the legal, rule-making process, which rules are ultimately "blessed" by the Florida Legislature. The Legislature would have to change the statute that the court just said mandates bike lanes in order for FDOT to screw around.

    If you are a member of the LAB-Reform group, then we will just have to agree to disagree. While I respect what John Forrester has done for advocacy, his efforts do not translate well to the roads and culture of South Florida.
    Last edited by EmptyCup; 03-27-08 at 05:58 PM.

  25. #25
    Ride the Road Daily Commute's Avatar
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    Quote Originally Posted by EmptyCup View Post
    Other Florida Statutes required FDOT to adopt "uniform minimum standards for the design of roadways" to include bike lane design. Those rules were adopted pursuant to law and therefore cannot be changed outside of the legal, rule-making process, which rules are ultimately "blessed" by the Florida Legislature. The Legislature would have to change the statute that the court just said mandates bike lanes in order for FDOT to screw around.
    Which other statutes require striped lanes? The statute cited in the opinion requires only bicycle "ways."

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